Although the provision of issuing ordinances amounts to the usurpation of legislative power by the Executive, both center and states in India have taken an unrestrained course to it. Discuss.

Article 123 of the constitution of India provides the President the power to pass ordinances to give effect to legislation when either or both houses of parliament are not in session, similarly the power is given to the governor in article 213.

The ordinance route taken up by the center & states:

  • The recently brought-out Agricultural laws were passed by means of an ordinance.
  • Bihar government in the 1980s and 90s passed repeated ordinances on some subjects.
  • The central government often uses the ordinance route to pass sensitive and controversial laws that infringe upon state subjects.

Concerns regarding issuing ordinances:

  • Against separation of power, i.e the executive takes up the role of passing legislation.
  • Parliamentary scrutiny is bypassed by avoiding debates and discussions.
  • Ordinance-making power is co-existent but not a parallel law-making power.
  • The reasons that render necessary the passage of ordinance may be malafide.
  • The ordinance route must be taken only when either or both houses are not in session and the situation renders it necessary due to some immediate necessity.

Various judgments made by the supreme court in the R.C Cooper case, D.C Wadhwa case, and Krishna Kumar case provide adequate guidelines for use of ordinance power by the President & Governer. Unnecessary use of ordinance power is adjudged as unconstitutional. Hence, ordinances must be passed responsibly.

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